Political Scene: Abortion Rights Forty Years After Roe v. Wade

Forty years after the Supreme Court’s decision in Roe v. Wade—the anniversary is on January 22nd—the debate over the case, and abortion, hasn’t cooled off. If anything, it has only become more controversial. “[Roe] was, I think it’s safe to say, the galvanizing force of the new right, the religiously oriented conservative movement,” Jeffrey Toobin says on this week’s Political Scene podcast. He and Jill Lepore join host Dorothy Wickenden to discuss Roe and the politics surrounding abortion and contraception today.

As we saw in 2012, abortion is still important enough an issue that several candidates—Todd Akin and Richard Mourdock foremost among them—could see their campaigns fall apart as a result of it. But in spite of the electoral victories for the pro-choice side, last year’s eruption of extreme pro-life sentiment exposed the continued threats to access to safe abortions and contraception. Toobin says,

The concept of defunding Planned Parenthood on the theory that even though government money doesn’t go for abortion—the idea is that all money is fungible—any dollar that you give to Planned Parenthood de facto supports abortion. That is now Republican gospel. And that is just an example of how the Republican Party keeps getting more and more conservative.

Lepore sees the political battle as broader and not just about Republicans. “I think Democrats are rotten on this, too,” she says. “I think generally women’s rights is in this incredibly torpid, dormant state in this country where we are fighting for the right to have contraception available at public health-care clinics. We were fighting for that in 1916. It’s an absurd situation. Watching the Republicans implode over this issue is one thing, but watching the Democrats fail to take any position of leadership is incredibly frustrating.”

“It’s exhausting,” she continues, “to have to watch all of the political conversation about women in this country be about what’s inside of our uteruses.”

This isn’t just a political battle, of course—it remains a legal one as well. Toobin says that the way Roe was decided makes it more vulnerable than it might otherwise be. “Originally, abortion was grounded in the right to privacy, which is, frankly, a rather nebulous concept in constitutional history. The word ‘privacy’ does not appear in the Constitution,” he notes. “Even among abortion-rights supporters, privacy is considered a somewhat nebulous peg on which to put abortion rights.” But he does see a way in which the legal foundation for the constitutionality of abortion might be shored up: “Equal protection—the concept that if you ban abortion you are discriminating against women—that is a favored view of Justice Ginsburg. If Ginsburg is ever in the majority, and if progressives are in the majority in a major abortion decision again, it is very likely they would ground it in equal rights for women rather than in the more nebulous concept of privacy.”